“The Best-Selling Ketchup in the World”
摘要
There can be no special appeal in respect of violation of articles of Brazil’s Code on Self-Regulation in Advertising because the latter is a privately created norm and does not fall within the concept of Brazilian federal law, as provided for in Art. 105(III)(a) of the Federal Constitution. There is nothing unlawful about the advertising slogan “The best at everything it does”. It is described as “puffing” – mere tolerable exaggeration – which is conduct widely accepted in the Brazilian advertising market and practised by the appellant itself. Such a slogan does not constitute objective evaluation but stems from a subjective critique of the product. Therefore, it is reasonable to allow manufacturers or service providers to claim to be the best at what they do, especially as what is involved is a self-evaluation of their product and what they hope to achieve. This is all the more true when there is no disparaging message about their competitors. The slogans used by the respondent – “The best-selling ketchup in the world” and “The best at everything it does” – are lawful, and there is no evidence on file of material damage owing to competitive advantage alleged as a result of their use. That rules out any obligation to pay compensation. The appellant’s advertising contains commercials and slogans that are as appealing as, or more appealing than, those of the respondent. The claim that the latter be ordered to abstain from acting in a similar way to the appellant itself cannot be accepted as it would violate the principle of objective good faith, especially its concept of prohibiting contradictory conduct (venire contra factum proprium).